In re N.M.

141 A.3d 539

2016 PA Super 120

In re N.M.

Appeal of N.M.

No. 950 EDA 2015

Superior Court of Pennsylvania.

Argued March 31, 2016.

Filed June 14, 2016.

Isla A. Fruchter, Public Defender, Philadelphia, appellant.

Christopher P. Lynett, Assistant District Attorney, Philadelphia, for Commonwealth, participating party.

BEFORE: BOWES, OLSON, and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

N.M. (Appellant) appeals from the dispositional order entered March 17, 2015, after she was adjudicated delinquent of retail theft. Upon review, we vacate the order and remand for further proceedings consistent with this opinion.

The juvenile court summarized the testimony offered at the adjudicatory hearing in this matter as follows.

Stephen McCartney was the first witness to testify. Mr. McCartney testified that on December 21, 2014, he was working as a plain clothes loss prevention agent at Nordstrom Rack store located at 17th and Chestnut Streets, Philadelphia, Pa. On that date, Mr. McCartney said that he observed [Appellant], along with another young woman, J.B., enter the store at approximately 3:45 PM. Mr. McCartney identified [Appellant] at the bar of the court. Mr. McCartney explained that he began surveillance of the two young women because they were carrying seemingly empty bags and looking around suspiciously. Mr. McCartney testified that he maintained continuous observation of [Appellant] and [J.B.] once they were in the women's shoe department on the third floor of the store. He explained that [J.B.] selected a pair of blue Ugg boots valued at $159.97[ ] and, approximately five (5) minutes later, they headed for the men's shoe department where [J.B.] sat down and placed one boot into each of the two bags that were carried into the store. Mr. McCartney said he observed [Appellant] hand a black handbag to [J.B.] so a boot could be concealed in it. Mr. McCartney testified that while [Appellant] was carrying a black handbag and [J.B.] carried an empty H & M shopping bag, the women switched bags once the boots were placed in them. Mr. McCartney testified that he was approximately 20 to 25 feet away when he made these observations and he had a complete view of the transaction. Mr. McCartney watched the two women proceed down the elevator to the first floor where [Appellant] left the store through the Chestnut Street exit while [J.B.] left the store through the 17th Street exit passing all of the points of sale without stopping to pay for the merchandise. Mr. McCartney testified that the police were called and both [Appellant and J.B.] were stopped and arrested. The merchandise was returned to the store.

The only witness to testify for the defense was [Appellant]. She testified that she was at the Nordstrom Rack store on December 21, 2014 with her friend, [J.B.]. [Appellant] testified that her friend was shopping for boots and she sat down in the men's section to try them on. [Appellant] indicated that [J.B.]'s books were in her black handbag, and it was heavy, so they exchanged bags. [Appellant] said that it was crowded on the first floor and she walked out the Chestnut Street exit when she looked back and realized that [J.B.] was [not] behind her. She testified that she started to call [J.B.'s] cell phone while walking back to the store when security guards came towards her asking for the boot and grabbing the H & M bag. She was then taken back to the detention room and the bag was emptied out. [Appellant] testified that she did not know until that time that [J.B.] put the boot in the bag. [Appellant] further testified that she did [not] see [J.B.] put the boots in the separate bags and she did [not] realize that she carried a boot out of the store in the H & M bag.

Juvenile Court Opinion, 7/7/2015, at 3–5 (citations omitted). Of particular import for purposes of this appeal, Appellant sought to call J.B. as a defense witness at the adjudicatory hearing, but the juvenile court prevented her from doing so out of concern for protecting J.B.'s Fifth Amendment right against self-incrimination. N.T., 3/17/2015, at 17–20.

Following the adjudicatory hearing, the juvenile court adjudicated Appellant delinquent for retail theft and placed Appellant on probation. This appeal followed.

On appeal, Appellant presents the following issues for our consideration:

1. Was not [A]ppellant ... denied her constitutional rights to compulsory process, a fair trial and to present a defense when the juvenile court would not permit her teenage defense witness to provide completely exculpatory testimony by erroneously ruling that the teenager could not waive her privilege against self-incrimination?

2. Did not the juvenile court err and abuse its discretion in adjudicating [A]ppellant delinquent without inquiring into whether, or making a finding that, [A]ppellant was in need of treatment, rehabilitation or supervision?

Appellant's Brief at 3.

“We will disturb a juvenile court's disposition only upon a showing of a manifest abuse of discretion.” In re C.A.G., 89 A.3d 704, 709 (Pa.Super.2014). However, where an appeal presents a question of law, our standard of review is de novo and our scope of review is plenary. In re R.R., 57 A.3d 134, 139 (Pa.Super.2012).

In her first issue, Appellant contends that the juvenile court improperly prevented J.B. from waiving her privilege against self-incrimination and testifying to corroborate Appellant's defense that Appellant did not know that J.B. had put the Ugg boot in Appellant's bag. Appellant's Brief at 11. Appellant argues that the juvenile court erred in so doing because, inter alia, J.B. was represented by counsel, fully advised of her right against self-incrimination, and wished to testify on Appellant's behalf. Id. Appellant claims that the juvenile court's decision violated her constitutional rights to have compulsory process for obtaining witnesses in her favor, to a fair and just trial, and to present a defense. Id. at 11, 15–17.

The Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution provide that, in all criminal prosecutions, an accused has a right “to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI ; Pa. Const. art. 1, § 9. This right attaches to juvenile proceedings pursuant to section 6338 of the Juvenile Act, which provides that “[a] party is entitled to the opportunity to introduce evidence and otherwise be heard in his own behalf and to cross-examine witnesses.” 42 Pa.C.S. § 6338(a).

Notwithstanding the above, the right to have compulsory process for obtaining witnesses in one's favor “is qualified to the extent of existing testimonial privileges of witnesses, such as the privilege against self-incrimination. The right to compulsory process guarantees a defendant the process to obtain witnesses in his favor but does not grant him the right to secure the attendance of any and all witnesses.” Commonwealth v. Lyons, 833 A.2d 245, 254 (Pa.Super.2003). A juvenile's Fifth Amendment right against self-incrimination is also provided for in section 6338 of the Juvenile Act. See 42 Pa.C.S. § 6338(b) (“A child charged with a delinquent act need not be a witness against or otherwise incriminate himself.”).

Keeping these principles in mind, we observe that the issue in this case is unusual in that it does not involve a challenge to an assertion of the privilege by a juvenile, but instead a challenge to a court's prohibition against a juvenile's waiver of that privilege:

[Appellant's Counsel]: ... Your Honor, at this time I would call [J.B.] to the stand.

THE COURT: How do you expect to do this?

[Appellant's Counsel]: Your Honor, I believe [J.B.'s counsel] will colloquy [J.B.] on the stand about testifying—

THE COURT: How old is [J.B.]?

[Appellant's Counsel]: [J.B.] was born in '98, so she is 16 years old, Your Honor.

THE COURT: She's not testifying. She is the coconspirator on the case where the Commonwealth just tried to amend for conspiracy. I would not allow that, but only because they didn't do it in a timely fashion.

What is the benefit to this juvenile to get up on the stand and tell a story?

[Appellant's Counsel]: Your Honor, she's going to tell the truth that there was—

THE COURT: It's not about the truth, it's about whether she has 5th Amendment rights.

[Appellant's Counsel]: She does have 5th Amendment rights.

THE COURT: Very good, she does. And that's what [J.B.'s counsel] is here for, to be 5th Amendment counsel.

[Appellant's Counsel]: I was not involved in the conversation about the 5th Amendment rights, but I understand from [J.B.'s counsel] that he explained what her rights are, the consequences of testifying here today. She said she still wants to testify, which is why we put the colloquy on the record.

THE COURT: Sure, she might want to buy a car too but can she? No. You know why? Because she's not 18 yet. She's a juvenile. So just because she wants to testify doesn't mean she gets to testify. And it's pretty clear to the [c]ourt that she has some serious 5th Amendment issues.

[Appellant's Counsel]: Understood, Your Honor.

THE COURT: Was she ever arrested?

[Appellant's Counsel]: She was arrested, Your Honor.

THE COURT: And is that still coming up?

[J.B.'s Counsel]: I can tell the [c]ourt that she was—her case was diverted. She got GAP, and she is not quite completed that program.

THE COURT: Okay. So then she has double exposure.

[J.B.'s Counsel]: I've advised her, and she understands her exposure.

THE COURT: Have you advised her not to testify?

[J.B.'s Counsel]: I have advised her of all of her options, Your Honor. If it was my decision, I would tell her not to, but she's indicated that she wants to.

THE COURT: I'm not saying that. What difference does it make what she wants to do? The idea is that I appointed you as her counsel to advise her legally what she should do. It's pretty clear to me that legally she shouldn't testify, so I'm not going to allow her to testify.

N.T., 3/17/2015, at 17–20.

This Court and the Pennsylvania...